Stewart Sharma Harsanyi Calgary Immigration Law Firm Blog

Great, eloquent statement on state protection by Justice Shore in MCI v. Baranyi 2015 FC 221: [2] In addition, the political and socio-economical state of affairs of any country is complex and multi-faceted, a state protection analysis also entails complex considerations. This is why, as referenced above, the jurisprudence advises that a mere willingness by a state to address the situation of the Roma minority in Hungary cannot be “equated to adequate state protection” (Bors v Canada (Minister of Citizenship and Immigration), 2010 FC 1004 (CanLII) at para 61; Balogh v Canada (Minister of Citizenship and Immigration), 2002 FCT 809 at para 37). As stated by Justice Russell W. Zinn in Orgona v Canada (Minister of Citizenship and Immigration), 2012 FC 1438 (CanLII) at para 11 [Orgona]: “Actions, not good intentions, prove that protection from persecution is available”. In other words, theory does not always bridge over into practice. 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 →

The Federal Court on the deference owed to the Immigration Division

Recent Federal Court decision by Justice Zinn - great overview of deference owed to decisions by the Immigration Division in terms of detention reviews: http://decisions.fct-cf.gc.ca/en/2010/2010fc964/2010fc964.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 →

Federal Court Notes

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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 →