Stewart Sharma Harsanyi Immigration Law Firm Blog

The Scope of Discretion under s.44(1) and 44(2) of the IRPA

A PR loses a substantive right of appeal to the IAD if they are convicted and sentenced to a term of imprisonment of 6 months or longer in Canada. One approach to deal with such cases was to seek the Officer/Delegate's discretion not to write a report. No report means no enforcement. This was the approach taken by Jaskirat Sidhu who pled guilty and received an incarceral sentence of 8 years. Through counsel he made extensive submissions to the responsible officer/Minister's Delegate. The officer/MD ultimately proceeded with writing/referring the s.44(1) and (2) report. Chief Justice Crampton dismissed the application for leave and judicial review filed by Jaskirat Singh Sidhu against the decision to write and refer the s.44 report. [1] The circumstances leading to these proceedings are heartbreaking. I cannot recall any case more truly tragic for everyone involved. ... [4] By all accounts, Mr. Sidhu has demonstrated an extraordinary degree of genuine, heart-wrenching remorse. He now faces removal to India, after he and Ms. Mann spent many years of hard work to establish themselves in Canada. ... [8] Unfortunately, regardless of my determinations, the healing required to return to some form of a better life may become more difficult... Read more →

Immigration Detention

There was welcome news and developments concerning Canada's troubling use of provincial jails to house foreign nationals including refugee claimants in Canada. Ontario has announced that it will stop allowing the Federal Government to use its jails for immigration detainees. It will take effect in a year, but it's a development long awaited by stakeholders. From the Toronto Star: Canada’s use of maximum-security provincial jails to hold immigration detainees — who are not charged with a crime or serving a sentence, but can be detained indefinitely — has for years drawn condemnation from human rights organizations, including the United Nations. ... It was the subject of a recent Toronto Star investigation, which found more than 80 per cent of immigration detainees held in Ontario’s jails last year were detained solely on the grounds they were “unlikely to appear” for their deportation, not because they were considered dangerous. In more than half of the five dozen cases reviewed by the Star, detainees had reported mental health issues, and they were often subject to punishing conditions, including frequent lockdowns and solitary confinement. The basis most utilized to justify detention was that the foreign national/person concerned was unlikely to appear or is a... Read more →

The Foreign Pardon

Foreign Pardons Foreign convictions can easily result in inadmissibility to Canada if the offence is equivalent to a proscribed offence here. A pardon, however, can overcome such a finding. There are different terms for the “Pardon” concept which, in effect, acts to set aside the stain of a finding of guilt. For example, the UK Rehabilitation of Offenders Act automatically pardons eligible individuals without the need for an application. This does not however, obviate the applicant’s obligation to disclose their prior criminal law interaction on applications to Canada. The pardon may well be acceptable for IRCC, and the person concerned may well be found admissible, but non-disclosure may result in an allegation of misrepresentation. Not all pardons or findings setting aside guilt are made equal. A foreign pardon does not bind Canada’s hands. If confronted by a foreign pardon or expungement, an Officer must assess whether it is an instrument worthy of recognition. In Saini, the person concerned was convicted in Pakistan of hijacking; he was sentenced, paroled, and released. He then entered Canada on a false identity. When his past criminality came to light, he submitted a pardon from Pakistan. The pardon was essentially disregarded (both parties filed expert... Read more →

Consequences to an Allegation of Misrepresentation

The consequences to a finding of misrepresentation under the IRPA are serious. They include enforcement and potential removal for Permanent Residents and a 5 year ban on entering or applying for status for Foreign Nationals (See s.40(2)(a) of the IRPA). In practical terms, such a finding could end the aspiration to live in Canada or the end of a life built here in Canada. Counsel should also be aware of the possibility of criminal charges laid under the IRPA for misrepresentation. In R v. Singh 2019 ABPC 37 the accused was charged with “knowingly, directly misrepresent or withhold material facts relating to a relevant matter that induced or could have induced an error in the administration” of the IRPA contrary to section 127(a) of the IRPA. The Court found Mr. Singh guilty of knowingly using false university acceptance documents and other false documents that resulted in the issuance of a study permit. Singh said any misrepresentation was innocent on his part, arguing that he did not know the documents were false and attempted to shift the blame to his immigration representative. Ultimately the trial judge found that Mr. Singh’s application was his responsibility and he was “accountable for the lies... Read more →

Ministerial Relief -Things Could Always be Worse!

Practice in this area can be dispiriting at times. Ministerial Relief is required for inadmissibility grounded in the most serious sections of the IRPA -security, violations of international human rights, and organized criminality. The wheels of justice grind exceptionally slowly in these cases. Not only does it take an extraordinary amount of time for the matter to be determined, the outcome of the case may well depend more on the identity and ideology of the particular Minister than the merits of the case. Remember the "good old days" when Vic Toews was the Minister of Public Safety and Emergency Preparedness? Justice Mosley commented on the “simplistic” analysis of then Minister Vic Toews in deciding to deny Ministerial Relief in Agraira[1]: [27] I agree with the applicant that in this case, there are concerns whether the Minister’s decision “turned on the simplistic view that the presence in Canada of someone who at some time in the past may have belonged to a terrorist organization abroad can never be in the national interest of Canada”: Kanaan v. Canada (Minister of Citizenship and Immigration), 2008 FC 241, [2008] F.C.J. No. 301, at para. 8. [28] Accordingly, the Minister’s analysis could be said to... Read more →

Exclusion from the Refugee Convention -Article 1E

It was a pleasure appearing before Justice Mosley of the Federal Court this last Monday. We challenged a decision of the Refugee Appeal Division that excluded our client from Refugee protection because of his permanent residence status in Italy. Like all exclusion clauses Article 1E is a complicated analysis and one that lends itself to error. Reading Professor Hathaway it is clear that he is no fan of how the exclusion clause has been interpreted in Canada and other countries such as Australia and the United States. On its face the exclusion clause is meant to prevent forum or asylum shopping. The Article states that the (Refugee) Convention doesn't apply to those recognized as having the rights and obligations which are attached to the possession of the nationality of the putative country of exclusion. It is clear that Professor Hathaway is concerned about the expansion of exclusion over time; an assessment that elevates form over substance. H Hathaway's take: those rights and obligations mean essentially assimilation that the individual has been integrated in the putative country --it's for those that truly enjoy treatment genuinely equivalent to that afforded to nationals and the only ones that should be excluded are truly... Read more →

The Record Suspension/Pardon -by Qimat Zafar

Record Suspension A criminal record can have severe adverse consequences on parts of your life such as your employment prospects and your ability to volunteer with vulnerable groups such as children and the elderly. It can also limit your immigration opportunities, particularly when you wish to apply for Canadian citizenship. Your record may prevent you from many opportunities that would otherwise be available to you. At Stewart Sharma Harsanyi, we can assist you with the following: Determining whether you are eligible for a record suspension; Gathering the required information and supporting documentation necessary for your record suspension application; and Submitting your complete application for processing to the Parole Board of Canada (PBC).* *The PBC is the official and only federal agency responsible for making record suspension decisions under the Criminal Records Act (CRA). A record suspension remove’s an individual’s criminal record from the Canadian Police Information Centre (CPIC) database. This means that CPIC will not show that they have a criminal record or a record suspension. This in turn allows individuals to access employment and educational opportunities and reintegrate into society. Should you have any questions about the record suspension process, please contact our associate Qimat Zafar. Read more →

Discussion on Crime Beat discussing deportation and immigration enforcement process for serious criminals

It was a pleasure joining Crime Reporter Nancy Hixt on her great podcast, "Crime Beat", discussing the deportation and immigration enforcement process for serious criminals. Read more →

Interview on AM770 January 22, 2021 Discussing the Possible Deportation of Jaskirat Sidhu the Driver in the Humboldt Tragedy

Summary: Calgary immigration lawyer Raj Sharma discussed the case of Jaskirat Singh Sidhu, the driver involved in the Humboldt Broncos bus crash who is facing deportation after serving his sentence. Sharma explained the immigration process for temporary residents and permanent residents like Sidhu, who is a long-term resident of Canada with a permanent residency status. He also mentioned the Faster Removal of Foreign Criminals Act, which lowered the threshold for deportation to six months. Sharma believes that officers have some discretion in making decisions, and in Sidhu's case, they might consider factors such as his establishment in Canada, ties to this country, the thoughts and views of family members of the victims, his early guilty plea, and his honorable conduct during the trial. Sharma thinks that Sidhu is one of the victims of the tragedy, and the regulations surrounding driving a truck that size across different provinces were insufficient. Some families of the victims have spoken in support of Sidhu, while others are against allowing him to remain in Canada. Danielle Smith: Get to that though, we have another topic that we want to deal with. I feel I'm going to be off side was you guys all day today... Read more →

Consequences on Findings of Misrepresentation for Overseas Spousal Work Permits

Summary: The author is a Canadian immigration lawyer who has dealt with several refusals of work permit applications for spouses seeking to join their partner in Canada. These refusals were made by the same officers at the same office (CHC Delhi) and resulted in findings of misrepresentation, which posed significant obstacles for the intended future application for permanent residence. The author notes that these findings are very serious and can only be reviewed by the federal court, with no de novo appeal to the Immigration Appeal Division. The author argues that the officers made an error in equating Section 4 of the IRPR with Section 40 of the IRPA, and that the officers rely on their own stereotypes about marriages in India and rely on an unrecorded interview to make their decision. The author states that there is a lot of jurisprudence on this issue and that findings of misrepresentation must be supported by compelling evidence and that the legal tests to determine misrepresentation and bona fides are two different things. The author believes that the officers at CHC Delhi are under a misapprehension regarding spousal work permit misrepresentation and wants to raise awareness of this issue at the federal... Read more →

Dealing with Dated and Dismissed Criminal Charges

Summary: The author and his firm are handling a number of cases concerning dismissed criminal charges in the Philippines (Manila Visa Office). The applicants have provided court documents and statements showing that the charges have been dismissed but the visa officers are still asking for more evidence. Some refusals are based on the requirement to provide relevant evidence and some based on the finding of inadmissibility under s.36(2)(c) despite the court documents. Some visa officers may not believe the applicant or court documents and the refusals may be based on credibility issues. The starting point is whether the applicant committed the acts in question and a dismissal of charges should be evidence of no commission. The visa officers may be asking for unreasonable levels of documentation; redress may be found at the IAD or the Federal Court depending on the facts. We are handling a number of cases all concerning dated and dismissed criminal charges. All of these refusals are from the Philippines (Manila Visa Office). In these cases, the applicants have provided court documents that the charges have been dismissed. Most of these incidents occurred decades ago. After the Procedural Fairness Letter, the applicants try and obtain documents pertaining... Read more →

Interview on the Jon McComb Show - February 5, 2019 - Immigration Consequences for Jaskirat Singh Sidhu Guilty Plea

Paul Jefferson: "Yes, we helped [inaudible 00:00:03] but at the same time he's a human being who ... he's not a serial killer. He didn't go out and kill anybody that day." Jon McComb: The thoughts of Paul Jefferson. He is a billet parent for the Humboldt Broncos. Speaking about Jaskirat Singh Sidhu at a sentence hearing last week and questions remain about the fate of the truck driver who caused the deadly Humboldt bus crash. He's going to be sentenced on March 22nd for 29 dangerous driving causing death charges. Mr. Sidhu is a Canadian permanent resident but not a citizen. Any sentence over six months makes him liable for deportation back to his native India. Would a sentence of several years, or many years, make him eligible to be deported to India and is that the proper response in this kind of case? Joining us on the line now from Calgary is immigration lawyer Raj Sharma. Mr. Sharma, nice to have you on our program. Raj Sharma: My pleasure. Jon McComb: Tell me, because basically all people who come to Canada from another country, unless they become citizens, are liable for deportation if they commit a serious crime.... Read more →

Will Jaskirat Singh Sidhu be Deported?

Will Jaskirat Singh Sidhu be deported? My thoughts -starts at about 13:40 of this interview with Danielle Smith of AM770. Danielle Smith: Okay. Now everybody is wondering why, right? Why did he blow through the stop sign? So Jaskirat Singh Sidhu, I will read his full statement. Of course it's quite short, but his lawyer says that the victim's family has been asking why his client went through the stop sign. He said, "I'm disappointed to say that I can't tell people what happened. He simply doesn't know. He beats himself up every day. Why didn't I see the signs? Why didn't I stop?" He said that Sidhu immigrated from India five years ago, and three weeks before the crash was hired by a small trucking company in Calgary. He spent two weeks driving with another driver before heading out on his own for his first time in the area near Tisdale. about 15 minutes before the collision, Sidhu stopped to adjust tarps covering his load. As he was heading towards the intersection, he was still focused on the tarps, and was looking in his rear mirrors. Danielle Smith: He said, "Sidhu didn't see the intersection and he didn't see... Read more →

Marriage Fraud Charges in Alberta

I discussed marriage fraud on Alberta Primetime in early 2014. Michael: First comes love, then comes marriage, unless it's all a ruse for Canadian citizenship. A 60-year-old Alberta man is the first in our province to be charged by the Canada Border Services Agency for an alleged marriage of convenience, a case falling under the Immigration and Refugee Protection Act, which was given new teeth in 2012 as part of the federal government's much-publicized promise of cracking down on marriage fraud. Is that promise being fulfilled? Joining us now, Raj Sharma, an immigration lawyer with the Calgary firm, Stewart Sharma Harsanyi. Good evening, Raj. Good to see you. Raj Sharma: Good to be with you. Michael: All right. This is the first case where border service investigations have resulted in charges here in Alberta. It's also being reported that since April of last year of 10 cases where there were charges, 8 have been concluded; 6 have resulted in convictions. What does that say to you about the government's track record since implementing changes? Raj Sharma: Well, Michael, the key is to look at this in the overall context. The overall context is that Minister Kenney himself has said that... Read more →

A half truth is a whole lie. Misrepresentation Explained.

A great deal of our practice deals with allegations by CIC of misrepresentation committed by those that seek to enter, remain or bring others to Canada. As with most things in life, prevention is the best cure. Despite what anyone tells you, do not: list someone else's child as yours simply to bring them to Canada; lie about the ages of children so that they meet the definition of a dependent child; provide false employment letters or other documents to establish you meet the requirements when you don't; commit marriage fraud (collusion or otherwise); exaggerate your time in Canada to meet the residency requirements for Permanent Residents or Citizenship; fail to mention children, spouses, common-law partners; fail to mention residency in other countries; Bear in mind, that this is not an exhaustive list. Even if you succeed in coming to Canada despite leaving something important out, or outright deception, you will find yourself in the unenviable situation of waiting for the other shoe to drop for years waiting, hoping against hope, that CIC will not discover your half-truth, un-truth, omission or outright falsehood. Finally, Justice Strickland's comments in Goburdhun v. MCI 2013 FC 971 are of assistance: [43] I also... Read more →

Deportation from Canada

Deportation, which removes an individual from a country that he or she has lived in (perhaps for a significant period of their lives) and severs or traumatizes familial ties is a punishment that should not be lightly imposed. Read more →

Deporting a Permanent Resident

Canada is seeking to deport or remove Belhassen Trabelsi, the brother-in-law of ousted Tunisian President Zine Ben Ali. Trabelsi is (or perhaps was) a permanent resident of Canada. Foreign Affairs Minister Lawrence Cannon has made clear the Canadian government's commitment in removing Trabelsi, whether by deporting him or extraditing him. Extradition is a criminal process and, generally speaking, is the fastest way of removing an individual. The Globe and Mail has reported that the Federal Government has "revoked" Trabelsi's permanent resident status. There is no avenue to simply strip a permanent resident of his or her legal status in Canada. Deporting a permanent resident can take a number of permutations. It could be that Trabelsi has committed an offence outside Canada; he may have committed misrepresentation on his own application for permanent residency; or he simply may not have complied with the residency requirement imposed on all permanent residents (2 years in Canada out of every 5). Either could be grounds for a report alleging inadmissibility that would be prepared by the CBSA. This report would then be referred to the Immigration Division, a quasi-judicial administrative tribunal where Trabelsi could challenge the CBSA allegations. If a removal order is issued... Read more →

Criminality appeals before the IAD

I was before the IAD on a number of appeals involving removal orders for criminality. As I've written in the past, these appeals involve the consideration of the so called "Ribic factors", namely: Seriousness of the offence leading to the removal order; Remorse/potential for rehabilitation; Length of time/establishment in Canada; Family in Canada and the dislocation to that family upon removal; Community support; and Degree of hardship upon return. Such hearings are analogous to sentencing hearings in criminal courts. I typically get the following evidence before the panel: - when the appellant came to Canada, his/her age at the time; - how the appellant became a permanent resident; - languages spoken; - employment history; - education (in Canada and the country of origin); - relationship history; - family composition; - children and arrangements for support; - household finances and financial contribution/dependency (if any); - assets/liabilities; - support from friends and family; - circumstances of the offence (including whether violence was involved/whether it was a pattern of offences or a singular occurrence); - country evidence for the country of return; - efforts at rehabilitation/compliance with probation or other conditions imposed after the criminal finding of guilt/counselling, degree of insight (this is... Read more →

Marriages of Convenience continuing concern

Marriages of convenience - fraudulent marriages arranged to bring a foreign national to Canada are a continuing concern. CBC Article here. Why should people care about this issue? Well, for one, the integrity of our immigration system is at stake. The other reason is that a surfeit of fraudulent marriages means that immigration will respond by tightening requirements, which might mean that legitimate marriages will be lumped in with the fraudulent. When a marriage is denied, the couple have the option to appeal the refusal to the Immigration Appeal Division. In my experience, the Immigration Appeal Division allows the majority of such appeals. That means that legitimate couples were forced to go through several years and pay thousands of dollars in travel and legal fees to prove their real marriage were in fact real. There's no easy answer or solution. Some might suggest increasing funding and investigations. At the end of the day, we may realize that our approach is wrong. I would suggest that the sponsorship be straightforward, but that a provisional visa be provided to anyone being sponsored in this manner. The provisional visa would allow them to enter and reside here, and start their life in Canada.... Read more →

CBSA Officers

A CBSA Enforcement Officer's job is inherently difficult. By definition he or she is dealing with potential infractions to Canada's immigration regime and has a mandate to uphold the integrity of the system. They see only the pathology and/or the 'bad apples' and it would be easy for them to become cynical and jaded. It's a given that they will encounter, on a daily basis: war criminals; failed refugee claimants; individuals who are abusing the immigration system; people working without authorization; employers in non-compliance with IRPA; people that have overstayed their visitor visa; identity fraud; criminals who need to be removed from Canada; and, sometimes, simple dupes or other victims - among others. While as lawyers we sometimes are in a somewhat adversarial position with CBSA, the officers here in Calgary are firm but generally fair. My encounter today with Darryl Zelisko was representative of my dealings with other officers. The officer was courteous and respectful with my client, but clear as to the repercussions with respect to his failure to attend at a secondary examination. We dealt with the warrant that was issued and the client was released on a cash bond and terms and conditions. All in a... Read more →