Stewart Sharma Harsanyi Immigration Law Firm Blog

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

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 Immigration and Refugee Protection Regulations, the Manuals, Operational Bulletins, the IRCC website, etc.); Lawyers and registered/regulated consultants; IRCC Officers; CBSA Officers; and The Federal Court of Canada I wanted to discuss the Federal Court in this post. Many clients are not aware of the role of the Federal Court. Some lawyers and consultants may not realize the limits of that role. The fact of the matter is that there are tens of thousands if not more decisions made by front line decision makers (IRCC and CBSA Officers and the tribunals that make up the Immigration and Refugee Board) every year. Some decisions can be challenged. However, the jurisprudence establishes significant deference and respect for the decisions of the various tribunals of the IRB and the decisions... 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

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. She attempted to navigate the PR process but failed. She was found to be in non-compliance (she didn’t leave after the expiry of her status, seeking instead status from within Canada). After the breakdown of her first marriage, she started a common law relationship with a failed refugee claimant. A “H&C” was filed for both; the couple had a child together. Along the way, a PRRA was initiated (and like most PRRAs, rejected). The H&C was refused on spurious grounds. JR was sought at the Federal Court. The Department of Justice (DoJ) graciously consented. During this time, she was meeting CBSA regularly and CBSA was coordinating removal plans. CBSA decided not to remove given the consent from the DoJ. Lo and behold -unlike other returns from Federal Court which take months or even years to re-determine, another Officer refused the H&C for the 2nd time within 2 months.... Read more →

Overview of Judicial Review of Immigration Refusals

If your immigration application has been refused you may have the ability to challenge that refusal at the Federal Court. Look -Don't construe this post as legal advice; there's a lot of nuance here -make sure you contact experienced counsel if your immigration application has been refused. It is important to understand which decisions are subject to Federal Court challenge and which ones are not. If the refusal is pursuant to the Family Class, that is you are an eligible sponsor and the person you are sponsoring falls within the Family Class and is not precluded from the Family Class via Regulation 117, then you for the sponsor person may have recourse to the Immigration Appeal Division which is a tribunal within the Immigration Refugee Board (note: if an officer makes a determination that an accompanying dependent is not a dependent, that decision has to be reviewed at the Federal Court). This is a substantive appeal. That means that it is an appeal that is de novo;the IAD is not bound by the decision of the visa officer. Typically appeals to the IAD concern refusals of spouses/common law partners/conjugal partners from overseas or application submitted overseas or refusals of parents/grandparents... Read more →

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 →