Stewart Sharma Harsanyi Immigration Law Firm Blog

Challenging Visa Office Refusals at the Federal Court of Canada

The first time I appeared before the Federal Court was almost 20 years ago. Things have changed -in terms of filing procedures, remote hearings and jurisprudence from the Supreme Court with respect to deference and the reasonableness standard. Other things have not changed. One perennial issue is apparent divergence in the Court. That divergence is perhaps inevitable: one judge’s decisions do not bind another. One judge's threshold of “reasonableness” (invariably subjective despite the efforts of the Supreme Court) can vary from another's, and thus lead to different outcomes. Thus, two cases with similar facts might have different outcomes, understandably leading to confusion or frustration for clients. For example, prior to the amendment to the Citizenship Act, there was divergence in case law relating to the requirements for citizenship, such as the metaphysical test of where an individual's soul lies versus the strict physical presence test (“two feet on the ground” test). That divergence has now been put to rest with the strict physical presence now the black letter of the law. While this divergence was apparent on some select matters in the past, one can speculate that the Federal Court has become further divided due to the influx of new... Read more →

Temporary Resident Visas, the Use of Chinook, and the Limitations of Judicial Review

Haghshenas v. Canada (Citizenship and Immigration), 2023 FC 464 Many Counsel were understandably intrigued and concerned with the government’s use of “Chinook”, by some early accounts, some kind of artificial intelligence tool used by IRCC in an effort to tackle ever growing overseas (TRV) file loads. In Haghshenas, the Court (Brown, J.) dismissed a challenge against a refusal to issue a visitor visa. As he did in Shahrukh Ali Khan 2023 FC 52, Justice Brown set out the [work permit] visa context (see paragraphs 13-16 of the decision). This case is notable because, in addition to the emphasis on the visa context and the minimal duties at play, the Court assessed the Applicant’s arguments impugning the legality of using Chinook which is in fact a Microsoft Excel-based tool developed by Immigration, Refugees and Citizenship Canada (IRCC) designed to improve processing efficiency. Brown J. found no unreasonableness or procedural unfairness in using Chinook when making a negative decision on a TRV application. The Court felt comfortable that applicant was given an opportunity to present their case and the resulting decision was reasonable and procedurally fair. Justice Brown found that the use of the tool did not change the change the decision-making... Read more →

All Things Mandamus -Excerpt from Borderlines

Summary: Raj Sharma, a lawyer, explains that mandamus (an application to the federal court to compel IRCC to do something) is more of an art than a science. He says that the trigger for mandamus should be pulled when there is less discretion involved in the underlying application. He does not worry too much about stated processing times and looks at the type of the application, the needs of the client, and the circumstances. He suggests that mandamus can be a very helpful tool, but it may have to be done multiple times and it depends on the particular case. He also says that sometimes, it is better to wait a few months before filing mandamus. Steven Meurrens: When should someone file mandamus? In speaking with lawyers, I've heard everything from, not when people should, but what people's practice seems to be. If the processing time has exceeded stated processing by two x, if it's even a day over or even any time, what's the downside? Oh, and for those, a mandamus is an application to the federal court to compel IRCC to do something. In the visa context, it's usually to conclude processing. Raj Sharma: My philosophy is that... Read more →

Explaining Divergence or Variance in Federal Court Case Law to Clients

Summary: Raj Sharma is discussing the difficulties in explaining the contradictions in Federal Court decisions. The decisions made by the Federal Court Judges can be inconsistent, and clients come to lawyers looking for certainty and strategies to win their case. However, the approach of various judges can be different, making it challenging to advise clients on their chances of winning. This is also a problem in explaining the discrepancies in approach between various Judges at the Federal Court. Federal Court practice is complex and even winning at the Court does not mean that the application will be ultimately granted. How do you explain Federal Court decisions that seem to contradict one another? It's not easy. Clients retain our services given our litigation experience and record. A decision is made to challenge an overseas TRV refusal. We know from the case law that Officers in this regard have greater margin or deference than other decisions. That being said, an Officer must act reasonably and fairly. Getting leave is not easy and while we do win more than our fair share at the Federal Court, it's not always easy explaining the discrepancy in approach between various Judges at the Federal Court. Here's... Read more →

Ask an Immigration Lawyer Anything -Borderlines Podcast

I had a great time talking about a wide number of issues in immigration law with my friends Steven Meurrens and Deanna Okun-Nachoff on the excellent Borderlines podcast. Summary: In this episode of the Canadian immigration law podcast "Borderlines," hosts Steven Meurrens and Deanna Okun-Nachoff interview Raj Sharma, a Calgary immigration lawyer. They answer listener questions related to immigration law. They discuss the challenges in advising clients on divergent case law, processing delays, the possible replacement of immigration lawyers by AI, and the state of the immigration law practice. They also touch upon the complexities of the federal court practice and the uncertainty that often comes with it. Topics: 1:30 - Addressing divergent case law 15:30 - Globe and Mail story about waiving TRV eligibility requirements to clear backlogs 23:00 - Chat GTP replacing lawyers and visa officers 31:00 - Processing delays 36:00 - Mandamus 42:00 - Open work permits for spouses of Canadians 56:00 - C-10 work permits and Express Entry 57:00 - A world in which GCMS notes are provided instead of refusal letters 1:00 - Is the practice of immigration law getting less fun? Borderlines · #80 - AMA with Raj Sharma on Processing Delays, Mandamus and... Read more →

The Removal Order and the Deferral Request...

"If the Canada Border Services Agency is interpreting section 48 of the Immigration and Refugee Protection Act which now requires removal "as soon as possible" rather than "as soon as practical", so that the only way the removal can be stopped is by court order, then so be it! What happened to common sense?" Begum v. Canada (MCI) [2013] FCJ No. 658 para 16. The Deferral Request There will come a time when your client has exhausted all avenues in obtaining status and putting off the enforcement of a removal order. There are various statutory, regulatory and potential administrative stays against enforcement of a removal order. One day, your client will be called in to meet with an enforcement/removals officer. They should be cautioned; if they give the officer the impression that they will not comply with removal they will be detained. I wrote about detention and the stay of removal a long time ago. Here, I will mainly discuss making a deferral request to that removals officer. The deferral request should only be made in certain circumstances; officers have limited discretion in granting such requests --it is, after all, their job to carry out enforcement. When an applicant is... Read more →

The Federal Court of Canada

The immigration process in Canada involves a number of moving parts, including the Immigration and Refugee Protection Act, regulations and policy, and stakeholders like lawyers and consultants, IRCC and CBSA officers, and the Federal Court of Canada. Decisions made by front line decision makers (IRCC and CBSA Officers and tribunals) can be challenged through judicial review (and sometimes before the IRB), but the Federal Court's role is limited to determining if the decision is reasonable and if there is a reviewable error. It cannot substitute a different decision and is confined to the record below and cannot usually consider new evidence. Therefore, it is important for an immigration practitioner to provide the best possible application at the outset to ensure the best outcome and avoid refusal. Immigrating to another country can be complex. The applicant likely has to navigate policy, procedure and legal requirements. This is true even of relatively straightforward applications, such as visitor visas or applications to reunite with family members. The system is complex and is made up of a number of moving parts and stakeholders. The immigration system includes: The jurisprudence (the law --the Immigration and Refugee Protection Act or Citizenship Act); Regulations and policy (the... 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 →

Misrepresentation and Federal Court Deadlines

If you go hunting for misrepresentation, surprise surprise you find it. Punjabis in particular should exercise caution submitting overseas work permits when spouse in Canada. It's clear that visa office is sending a message to this community & have no problem throwing baby out with bathwater. Delhi is far more likely to make a finding of misrepresentation than any other visa office. After such a finding, the only recourse is Federal Court. Federal Court deadlines are strict. If a visa office (likely Delhi) finds you/your spouse has committed misrepresentation you need to act within 60 days. Justice Bell refused to grant an extension of time and dismissed this application: https://t.co/XmAYycLbov Asking/waiting for the GCMS notes, going to your MP, asking for a reconsideration do *not* (necessarily) allow you to ask for an extension of time at the Federal Court. "Mr. Singh has provided no explanation for the delay other than the fact he was pursuing alternative remedies. That cannot be a valid explanation. If it were, the time limits set out in the legislative policy would be in constant chaos..." And... "Although his spouse spoke to a MP and he sought reconsideration of the decision, he did not move for... Read more →

The Emergency Stay Application

A common goal for immigration lawyers is to help clients avoid deportation. In this case the client, who has been in Canada for almost a decade as an international student, graduated and had a child there, attempted to navigate the PR process but failed. She was found to be non-compliant and after her first marriage broke down, she started a common law relationship with a failed refugee claimant. The couple filed an H&C, but it was refused. They sought a JR at the Federal Court and the DoJ consented, but CBSA nevertheless geared up for removal. The couple filed another JR and requested a deferral of removal. The Removals Officer refused to grant the deferral request. The only option was to seek an Emergency Stay Application, which was granted. The H&C JR will now be considered, but the author predicts more removals due to a spike in enforcement. One important goal that all immigration lawyers share is to help their clients avoid deportation. Deportation however is one outcome (among others) contemplated in the IRPA/IRPR. My client entered Canada almost a decade ago. She came as an international student, graduated (had a child here) and obtained a Post Graduate Work Permit.... Read more →

Overview of Judicial Review of Immigration Refusals

Summary: If your immigration application has been rejected, you may have the option to challenge the refusal in the Federal Court. The type of rejection and whether it can be appealed to the Federal Court or another tribunal depends on the specific circumstances. Some decisions, such as those made on family class sponsorships, can be appealed to the Immigration Appeal Division (IAD), which is a tribunal within the Immigration and Refugee Board. Other decisions, such as those made on tourist visas, work visas, and other permanent residency applications, can only be challenged at the Federal Court of Canada. The time frame for filing a challenge varies based on where the decision was made and ranges from 15 to 60 days. A successful challenge to a decision requires showing that the officer made a misapprehension of the facts, error of law, or committed a breach of natural justice or procedural fairness. To increase your chances of success, it is recommended to retain an immigration lawyer to review the details of the rejection and the strengths and weaknesses of your case. If your immigration application has been refused you may have the ability to challenge that refusal at the Federal Court. Look... Read more →

Mandamus to Compel Action on Your Citizenship File

My client was facing enforcement action by CBSA. It was a years long, seemingly interminable investigation as to her first marriage. After securing a response to an Access to Information Request (which yielded interesting details, including the fact that her citizenship application had been "put on hold") I filed an Application for Judicial Review and sought the prerogative writ of mandamus, which, in essence, compels the Respondent to do something that they're supposed to do (in this case, make a decision on that investigation). My thinking was that if a decision is made to close that file, then processing on the citizenship will follow; if a decision was made to write and refer a report alleging inadmissibility, then my client would be able to challenge that at a hearing before the Immigration Division and, if necessary, appeal any removal order to the Immigration Appeal Division. Leave was granted; at the hearing in July of this year it was clear that the presiding Justice was reluctant to grant mandamus in this sphere; he urged me to challenge the decision to suspend processing on the citizenship application instead (based on just one line that survived redacting in hundreds of pages). The client... Read more →

Mandamus

More on Mandamus -- from Justice Boivin's decision (http://decisions.fct-cf.gc.ca/en/2010/2010fc767/2010fc767.html): [13] Mandamus is a discretionary equitable remedy. It lies to compel the performance of a public legal duty which a public authority refuses or neglects to perform although duly called upon to do so. In Kalachnikov v. Canada (Minister of Citizenship and Immigration), 2003 FCT 777, [2003] F.C.J. No. 1016, from paragraphs 11 to 13, Justice Snider reviewed the requirements for mandamus in the immigration context: The Test for Mandamus [11] Mandamus is a discretionary, equitable remedy (Khalil v. Canada (Secretary of State), [1999] 4 F.C. 661 (C.A.)) subject to the following conditions precedent. 1. There is a public duty to the applicant to act; 2. The duty must be owed to the applicant; 3. There is a clear right to performance of that duty, in particular: (a) the applicant has satisfied all conditions precedent giving rise to the duty; (b) there was a prior demand for performance of the duty, a reasonable time to comply with the demand, and a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay; and 4. There is no other adequate remedy. 5. The "balance of convenience" favours the applicant (Apotex Inc.... Read more →

Federal Court decision on the Galloway affair

Justice Mosley has ruled on the (improper) efforts to keep George Galloway out of Canada: http://decisions.fct-cf.gc.ca/en/2010/2010fc957/2010fc957.html Read more →

'Usual practice' of immigration officer sufficient evidence of conduct

'Usual practice' of immigration officer is sufficient evidence of conduct: 20 Ms. Burrows, now a senior officer with the Department of Citizenship and Immigration, has been an immigration officer for 20 years. Ms. Burrows testified that her usual practice when recording applicants' answers is to put a "check-mark" in the appropriate "Yes" or "No" box that corresponded to the question on the application form. Ms. Burrows would then sign her initials "DB" and the date of the interview next to the "check-mark". As an evidentiary issue, testimony concerning one's usual practice is admissible and corroborative of evidence of conduct in a specific case: see, for example, Savoie v. Bouchard, [1983] N.B.J. No. 66; (1983), 49 N.B.R. (2d) 424 at paragraphs 27-37 (N.B.C.A.). Read more →

The test for mandamus ...

One of the remedies that can be granted by the Federal Court is mandamus. The Court can essentially compel the relevant decision maker/administrative tribunal to do something. Usually, this remedy is sought because the government/decision maker is refusing to do something -- such as not landing an individual despite an application for permanent residence that has been filed ... or not taking a decision. The Federal Court in Vaziri reiterated that 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.[1] The Court in Vaziri, supra, summarized the conditions precedent for a grant of mandamus: The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General), 1993 CanLII 3004 (F.C.A.), [1994] 1 F.C. 742 (C.A.), aff'd 1994 CanLII 47 (S.C.C.), [1994] 3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 211 (CanLII), [2003] 4 F.C. 189 (T.D.), aff’d 2003 FCA 233 (CanLII), 2003 FCA 233). The eight factors are: (i) There must be a public legal duty to act; (ii) The duty must be owed to the... Read more →

Attending at the Federal Court tomorrow. It's an interesting case. In our view, the Refugee Protection Division made an error in not finding a nexus to a Convention ground; further, in not assessing the claim under the 'compelling' reasons exemption. I am working on an potential paper on the compelling reasons exemption, and look forward to appearing before the Court and discussing the reviewable errors made by the RPD. Read more →

I completed an applicant's record today ... document was completed by way of PDF and will be filed electronically to the Federal Court. A print-out was made for the Respondent's counsel (Department of Justice for the Minister of Citizenship and Immigration), but massive amounts of paper were saved by doing this electronically. Read more →

Federal Court

I was at the Federal Court earlier this week dealing with a review of a decision by the Immigration Appeal Division. The case has some notoriety in Calgary but boiled down to the reasonableness of the IAD in 'importing' the objective of a seemingly unrelated enforcement section of the IRPA to a removal order dealing with criminality. The IAD had to have regard to the so called Ribic factors, which include seriousness of the offence, possibility of rehabilitation, community and family support, best interests of a child and hardship upon removal. Madame Justice Snider was presiding. She wrote the trial division decision of Medovarski - the IAD cited the SCC decision of Medovarski - and thus had particular insight into this decision. Counsel for the Department of Justice was Brad Hardstaff, who is senior counsel. I was gratified when the Court commended our written and oral argument. Reasons were reserved. I'm looking forward to reviewing the decision in due course. Read more →