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 →

Presentation to Immigration Seminars -February 2021

The Alternative Dispute Resolution Process -Residency Obligation Appeal

Summary: The author attended an Alternative Dispute Resolution (ADR) meeting to determine if a negative residency determination for their client, a septuagenarian, could be overturned without a full hearing. The ADR process is driven by a Minister's counsel, with a Dispute Resolution Officer serving as a facilitator. The MC asks the bulk of the questions and will consider factors such as non-compliance with the residency obligation, ties to Canada, hardship if relief is not granted, and the Best Interests of Children. In this particular case, the MC was experienced and found that the appeal would likely be granted if it proceeded to a full hearing, but after considering credible and corroborative documents and a short discussion with the client's family member, the MC gave his consent and the client was able to avoid a full hearing. I've discussed the ADR process in the past. Last week I attended at an ADR. The purpose of the meeting was to see whether a negative residency determination could be determined in my client's favour without need for a full hearing. My client, a septuagenarian, was unable to comply with the residency obligation set out in s.28 of the IRPA -essentially -other than a... Read more →

The Marriage Appeal

Summary: A visa officer outside Canada determines the genuineness of a marriage or common-law relationship for immigration purposes. If the family class sponsorship is refused, the sponsor has the right to a substantive review or appeal at the Immigration Appeal Division within 30 days of receiving the refusal. The appeal can be resolved through Alternative Dispute Resolution (ADR) or a full hearing if ADR is unsuitable. The full hearing is held in Calgary or Edmonton, typically for a full day, with the Board Member, Minister's counsel, the appellant (sponsor), and counsel in attendance. The hearing begins with an introduction by the Board Member and questions and cross-examination by both counsels. The appellant and applicant need to present evidence to establish the genuineness of their relationship and the Board will consider factors such as knowledge of each other, contact with family, financial support, and the couple's intent. The outcome of the hearing can be affected by the particular Board Member and the CBSA hearing officer, so it's recommended that the couple seek assistance from an experienced immigration lawyer to prepare for the hearing. A visa officer (for a sponsorship submitted outside Canada) is tasked with determining whether a marriage or common-law... Read more →

Alternative Dispute Resolution Meetings at the Immigration Appeal Division

The Immigration Appeal Division can hear the appeal of a permanent resident who is the subject of a removal order (for misrepresentation, criminality*, and breach of the residency obligation). If you have sponsored your spouse, common-law or conjugal partner and a visa officer has come to the conclusion that the marriage is not valid or not genuine (or both) then you can appeal that determination to the IAD as well. As an aside, it's not that easy to determine a "marriage-like" relationship. Even our courts are struggling with it. Yet our visa officers abroad seem to have no issue in determining the genuineness of a relationship after a quick interview. Other appeals include adoptions, medical inadmissibility (for sponsored family members). I hope I'm not missing anything. If I am, please let me know. The reality is that demand on our legal resources will always exceed capacity and resources. It's taking over 18 months in the Western Region to get in front of the Immigration Appeal Division (and apparently longer than that out east). If your spousal sponsorship has been refused and depending on the processing time of the responsible visa office combined with the backlog at the IAD, it could... Read more →

Tips for a (spousal sponsorship) appeal before the Immigration Appeal Division

Tips for a successful spousal sponsorship appeal before the Immigration Appeal Division of the Immigration and Refugee Board. 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 →

CIC Investigations: Marriages of Convenience

Citizenship and Immigration Canada here in Calgary is investigating individuals that came to Canada by marrying a Canadian/permanent resident spouse and subsequently divorced that spouse to remarry and sponsor a new spouse. One officer is tasked with this responsibility and there are perhaps 40 individuals that are being interviewed in the next few weeks. I attended with my client for the first interview last week. The purpose of the interview is to discuss the first marriage -- and to do an after the fact exercise in determining whether it was genuine. If the officer is not satisfied, the individual could be written up for misrepresentation and face removal from Canada. The typical fact scenario is the following: Individual marries a CC (Canadian Citizen or Permanent Resident) and is sponsored to Canada; Individual divorces the CC or PR and (typically within a year of the divorce) returns to their country to marry again; The second sponsorship is submitted but CIC gets concerned, puts that sponsorship on hold and refers the matter to the local office for further investigation; Time passes ... the individual and his (second) spouse are separated ... the visa office abroad refuses to process the application for the... 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 →

Appealing removal orders

Two hearings coming up in August, both appeals against removal orders. The removal orders themselves were precipitated because of criminal convictions by my clients (both permanent residents of Canada). It is my typical practice to submit psychological reports that address the rehabilitation/recidivism aspect of the so-called Chieu/Ribic factors. Given that the Immigration Appeal Division is to review the criminality of the clients, I requested David Andrews to prepare an opinion speaking to the seriousness of the offence (the first Chieu/Ribic factor). Depending on the reception/reaction of the IAD, I may make it a standard practice. Read more →

Attended at the Immigration Appeal Division this afternoon. Spousal sponsorship was refused because of the applicant's criminal record in Canada (a DUI). There were limited questions by the Minister's counsel given our conversation on Monday. After a canvassing of the circumstances of the offense, the applicant demonstrated remorse and an insight into the (now dated) offense that was sufficient for the Minister to consent to the appeal. Read more →

Appeal to the IAD: Breach of the Residency Requirement

IRPA allows permanent residents to appeal removal orders made against them. Removal orders can be made against permanent residents on a number of grounds. In my experience, misrepresentation and criminality are the most common; followed by a breach of the residency obligation. A permanent resident (PR) can appeal the removal order to the Immigration Appeal Division (IAD), an administrative tribunal. After becoming a PR, an individual must comply with a defined residency obligation (in essence, and with some exceptions, to be in Canada 730 days in a five year period -- Note, except for the initial 5 year period, the officer will calculate whether residency had been met for the 5 years preceding the date of the examination). Should a determination be made (within Canada, at a POE, or outside Canada) that a PR has not complied with the residency requirement, a departure order may be issued. The PR has the option of appealing that determination both on legal grounds and on discretionary grounds. In my experience, it is usually conceded that the departure order is valid in law and evidence is presented to establish the existence of humanitarian and compassionate grounds to justify special relief. The concept of 'abandonment',... Read more →

The spousal sponsorship appeal

I have written previously about the spousal sponsorship appeal hearing. This is the most common type of appeal before the Immigration Appeal Division (IAD). The appeal is from a refusal by an overseas visa officer (Note - there is no appeal for a "In-Canada Spousal Sponsorship") of a spousal sponsorship application. Typically 'red-flags' alert a visa officer - this can be in the form of incompatibilities, such as a disparity in age, education, social/linguistic background; or it could be a poor performance at an interview and the applicant displays a lack of knowledge of the sponsor. The sponsor (a Canadian citizen or permanent resident) has to file a Notice to Appeal within 30 days of receiving the decision. The Notice of Appeal can be faxed. The visa officer generally takes issue with the bona fides or 'genuineness' of the relationship. On some occasions, there may be an issue with the legal validity of the marriage (for example, a sponsorship will be refused if the marriage is not in accordance with the laws of that particular country; China/PRC for example does not recognize cousin-cousin marriages; other countries may have an age requirement). If there is an issue with the legal validity... Read more →

Last week was a busy one for hearings - there were three ADRs - one for criminal inadmissibility and two for spousal sponsorship. Then there was two inadmissibility hearings before the Immigration Division and a refugee claim from Bosnia-Herzegovina heard by the Refugee Protection Division to end the week. The ADRs allow the Minister to consent at an early stage; the (criminal) inadmissibility hearing is generally a foregone conclusion (but generally allow for an appeal to the IAD); and the refugee hearing is always interesting and allows the review of the s.96 or s.97 analysis, as well as an insight into specific country conditions. Read more →

Alternative Dispute Resolution Conferences aka ADR Conferences

An ADR is typically scheduled at the Immigration Appeal Division. As a result, it's typically used in either removal order appeals (most likely minor criminality) and sponsorship appeals (like a refusal of a spousal sponsorship ). Read more →

Just returned from the IAD - another removal order appeal (serious criminality). Client facing removal based on dangerous driving and sexual assault offenses. There are three options for an individual in this situation. The IAD can allow the appeal against the removal order, dismiss it, or impose a stay (with conditions). In this case, a the stay was imposed by way of a joint recommendation by both counsel. Client's issues with alcohol abuse was a central issue for the imposition of a stay. If the client can continue on the path of rehabilitation, then the appeal will be allowed and the removal order will eventually get dismissed. Read more →

Sponsorship appeal

I was at the IRB this morning to finish a spousal sponsorship appeal. Ministers Counsel was Ms Catherine King who is adept at cross examination and, given her posting at CHC Delhi, understands the cultural considerations at play for a sponsorship from India. While the presiding Member, Ms Maryanne Kingma, had reservations about some of the aspects of the case, she rendered an insightful (and positive) oral decision which took into account the legal burdens at play and the operation of section 4 of the Regulations. The experience this morning is an example of a proper administrative proceeding which should be granted considerable deference by a reviewing court. The decision maker was efficient, fair, was knowledgeable about the relevant statute and jurisprudence, and was cognizant of the evidence before her. Read more →

An Interesting Week before the IAD

Hearings before the Immigration Appeal Division involving appeal against a removal order based on criminality, and an appeal against medical inadmissibility when the principal applicant has passed away. Read more →

Appeal from Spousal Sponsorship Refusal

Had an appeal against the refusal of a spousal sponsorship. The hearing was held today via videoconference with the Board Member. In reviewing case law the night before, the following seemed to be helpful: As in all other cases of this nature before the Division to date, the two prongs of the "bad faith" test articulated in Regulation 4 are to be read conjunctively, as per the French version of the Regulations. In order for a foreign national to be caught by section 4 of the Regulations, the preponderance of reliable evidence must demonstrate that the marriage is not genuine and was entered into primarily for the purpose of acquiring a status or privilege under the Act. This approach, of the two available, is most favorable to the appellant. In order to succeed on appeal, the appellant need only establish one of the prongs of the test has not been met. The onus is on an appellant to demonstrate that the principal applicant is not caught by the excluding section of the Regulations. In today's case, an argument could be made that the marriage was entered into by the overseas spouse for the purpose of acquiring a status or privilege... Read more →

IAD reconsideration of a stay

An appeal to the IAD can result in couple of outcomes. The IAD can allow an appeal, dismiss the appeal or impose a stay. A stay is usually imposed on criminality matters. After a period of time ... usually 1 to 3 years ... the IAD will reconsider the matter. At this time it assesses whether the appellant has complied with the conditions and allow the appeal, extend the stay or cancel the stay and dismiss the appeal. Read more →